Passionate about IP! Since June 2003 the IPKat weblog has covered copyright, patent, trade mark, info-tech and privacy/confidentiality issues from a mainly UK and European perspective. The team is David Brophy, Birgit Clark, Merpel, Jeremy Phillips, Eleonora Rosati, Darren Smyth, Annsley Merelle Ward and Neil J. Wilkof. You're welcome to read, post comments and participate in our community. You can email the Kats here

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Wednesday, 19 December 2012

The book review season is now upon us, and over the next couple of weeks the IPKat and his friends will be reviewing, or at least previewing, some of this year's new titles. We start with this review by Dr Mira T. Sundara Rajan:

Gurry on
Breach of Confidence: The Protection of Confidential Information, Second Edition, by Tanya Aplin, Lionel Bently, Phillip Johnson and Simon Malynicz (Oxford University Press, 2012).

The
confidentiality of information deserves to be recognized as one of the key
legal problems of our age. As Francis Gurry notes, in his Foreword to this
Second edition of Gurry
on Breach of Confidence, “Technology
has made information precarious.” Conflicts over confidential information arise
with growing frequency, and they do so in a bewildering array of contexts, from
Aboriginal knowledge to commercial enterprises and state secrets.

In
their introductory remarks, the authors note the far-reaching consequences of
rules on confidence, pointing out that

“...confidentiality
is a legal concept which is of serious, and almost certainly increasing,
importance. Confidentiality is a critical tool in the regulation of the
dissemination of ideas and information, and as such plays a key role in
determining the boundary between ‘openness’ and ‘secrecy’. The work of the law
of confidentiality thus has an impact upon personal autonomy, economic
mobility, political transparency (and thus accountability), open justice, as
well as innovation, competition, and economic prosperity.” (para. 1.24)

Yet,
as this book demonstrates, the law on breach of confidence is far from
straightforward. The complexity of this area of the law owes itself to at least
two important factors. First, the legal rules on breach of confidence are derived
from diverse sources, both ancient and modern, leading to challenges in
locating, articulating, and applying the law. Secondly, the fact that
confidential information arises in so many contexts leads to an overlap between
the legal principles on confidence and a wide variety of related legal regimes.
Accordingly, an understanding of confidence may depend on the ability to work
simultaneously within different legal and conceptual frameworks. For example,
confidentiality in the context of intellectual property rights can mean
something quite different from the confidentiality of state secrets (or,
indeed, as in the SpycatcherandBlake cases, confidentiality
of state secrets and copyright issues may intersect).

The
authors of Gurry
on Breach of Confidence
provide an excellent guide to understanding the
complex legal issues involved. The book is systematic and
well-organized, and its treatment of the subject aims to be comprehensive.

The
book opens with a series of chapters dealing with “Preliminary Matters,”
tracing the historical steps in the evolution of breach of confidence – an
approach that is common enough in legal studies, but seems truly essential in
this area – and outlining the policy bases for the restriction of information.
The discussion is detailed and academic, and would provide scholars and
students with a clear basis for understanding the origins of the modern law.

The
book goes on to a practical and concise examination of the various
jurisdictional bases of an action for breach of confidence, an important
exercise given what the authors call the “lingering uncertainty and
controversy” surrounding this issue. Contract, equity, property, and tort law
are all identified as potential sources of law. The importance of a historical
perspective is again emphasized in this section, where the relatively ancient
doctrines of equity and notional or, as the authors say, “metaphorical,”
property, are discussed (para 4.74; including the controversial concept of
“common law copyright” in unpublished works, paras 4.77-79).

The
authors then proceed to a useful discussion of the nature of confidential
information itself. They approach this problem from both a definitional
perspective, examining the characteristic attributes of confidentiality, as
well as a practical angle, identifying the major contexts in which confidential
information may arise. The focus is on
four broad categories: trade secrets, artistic and literary “information,”
government secrets, and personal information.

At
the heart of the book lies an extended discussion of the obligation of
confidence itself. Different professional and other classes are considered,
and the authors review the special circumstances arising from employment
relationships and state secrets. The treatment of remedies is extensive, as it
deserves to be in relation to such a complex and subtle subject, and is sure to
be a useful resource for practitioners. Finally, in an interesting and helpful
set of concluding chapters, the authors consider the international aspects of
breach of confidence in both public and private international law.

The
clarity of the structure is matched by generally clear writing throughout the
book, which helps to convey this complex subject-matter with a minimum of
confusion.

The
book should be useful and interesting to both academics and practitioners, with
different chapters appealing to each (the chapters are largely self-contained
and could stand alone). Students at all levels will find it to be a helpful
resource for gaining an understanding of this area.

As
noted above, the work is comprehensive in nature, and this team of authors has
succeeded in collaborating very effectively to produce a work of this scope. It
may be worth noting that the comprehensiveness of the book necessarily means
that specialized areas, like questions of sacred knowledge in Aboriginal
communities, receive tantalizing hints without an in-depth treatment. This
reviewer must apologize for seeking more coverage of issues in a book that
already exceeds 800 pages in length – but the readers’ interest would be
piqued, and the book could perhaps be still more appealing, if the authors were
to extend their study to new areas of interest such as this one, in future
editions.

It
may also be important to consider how the jurisdictional scope of the book
could be expanded – perhaps by including more citations to leading works on
confidence from other major jurisdictions such as the United States. The work
as it stands is (and is intended to be) UK-centric. As the authors note, and as
original author Francis Gurry remarks in his Foreword, breach of confidence is
an area that is profoundly affected by developments in information technology.
Information moves with unprecedented ease in our era, and there are few
impediments to its flow across borders. An expanded discussion of how the rules
on breach of confidence intersect in different countries could be very useful. .

Bibliographic details are available from the Oxford University Press website here.

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